Working through discriminatory treatment
Jackie Denham discusses a recent decision on whether an employer can dismiss someone for refusing to work in response to its unlawful behaviour.
Case law has established that in some circumstances an employee will be justified in refusing to work in response to unlawful treatment by their employer. The recent case of Rochford v WNS Global Services (“WNS”) considered if an employer could fairly dismiss an individual for refusing to work in response to the company’s actions.
Mr Rochford was Senior Vice President with responsibility for sales. He was disabled under the Equality Act 2010 leading to a long absence. Once he was fit to work WNS only allowed him to return to cover a proportion of his previous responsibilities without any indication of when he could return to his substantive full position. Mr Rochford raised a grievance complaining this was a demotion and discriminatory and he refused to carry out the reduced tasks despite warnings from the company that this was considered misconduct. He was ultimately summarily dismissed. He claimed disability discrimination, victimisation, unfair dismissal and wrongful dismissal.
The employment tribunal decided that WNS’ effective demotion of Mr Rochford and failure to tell him when he could return to his full role was discrimination arising from his disability. It also concluded that although he had been unfairly dismissed as a result of procedural failings, his refusal to work in these circumstances constituted gross misconduct ultimately justifying the decision to dismiss. Therefore he would only be entitled to very limited compensation.
Mr Rochford appealed the finding that he had been guilty of gross misconduct. His appeal was dismissed. The Court of Appeal concluded that the fact that WNS had acted discriminatorily did not give him an absolute right to refuse to work and continue to be paid until that wrong was remedied.
This decision does not mean that an employer can fire any employee who is refusing to work as a result of treatment they are challenging! Whether it is reasonable for an employee to refuse to work will very much depend on the circumstances. Mr Rochford had retained his salary, benefits, title and status, the work he was asked to do was within the scope of his contractual duties and he was fit to do it. Also WNS had not directly discriminated against him and WNS’s actions, although held to be wrong, were not made in bad faith. On this basis his refusal to work was deemed unreasonable and could be fairly treated as gross misconduct by WNS.
If you would like any advice on managing complex employee disputes such as these please do get in touch.